B-15605, APRIL 1, 1941, 20 COMP. GEN. 585

B-15605: Apr 1, 1941

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ALIENS - VOLUNTARY ENLISTMENT IN ARMY - APPROPRIATION AVAILABILITY FOR PAY AND ALLOWANCES THE APPROPRIATION FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR 1941 IS NOT AVAILABLE FOR PAYMENT OF PAY AND ALLOWANCES TO AN ALIEN WHO VOLUNTARILY ENLISTED IN THE ARMY AFTER JULY 1. ALTHOUGH THERE IS A LETTER OF FEBRUARY 13. PARAGRAPH 3 OF WHICH IS AS FOLLOWS: IT HAS SINCE BEEN DETERMINED THAT THE PERIOD INDICATED IN PARAGRAPH 1. 1941) WILL NOT BE CONSIDERED AS LOST TIME AND WILL NOT HAVE TO BE MADE UP BY THE SOLDIER. THERE WAS FURNISHED WITH THE VOUCHER COPY OF AN INSTRUMENT ENTITLED " AGREEMENT TO COMPLETE NATURALIZATION WITHOUT DELAY" AS FOLLOWS: I. DECLARATION OF INTENTION WAS FILED AT CHICAGO.

B-15605, APRIL 1, 1941, 20 COMP. GEN. 585

ALIENS - VOLUNTARY ENLISTMENT IN ARMY - APPROPRIATION AVAILABILITY FOR PAY AND ALLOWANCES THE APPROPRIATION FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR 1941 IS NOT AVAILABLE FOR PAYMENT OF PAY AND ALLOWANCES TO AN ALIEN WHO VOLUNTARILY ENLISTED IN THE ARMY AFTER JULY 1, 1937, FOR THE FIRST TIME.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LIEUT. COL. JOHN L. SCOTT, UNITED STATES ARMY, APRIL 1, 1941:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE CHIEF OF FINANCE, YOUR LETTER OF FEBRUARY 24, 1941, TRANSMITTING A VOUCHER STATED FOR $67.17 IN FAVOR OF PVT. (1ST CL.) DONALD M. GARDINER, NO. 16011942, PRESENT STATION ILLINOIS INDUCTION PERSONNEL, 230 EAST CHICAGO AVENUE, CHICAGO, ILL., REPRESENTING PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 1, 1940 TO JANUARY 10, 1941.

ACCORDING TO NOTATIONS ON THE VOUCHER GARDINER ENLISTED IN THE ARMY SEPTEMBER 28, 1940, AND HAS APPARENTLY BEEN PAID FROM DATE OF ENLISTMENT TO NOVEMBER 30, 1940, AND FROM JANUARY 11 TO JANUARY 31, 1941, PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 1, 1940 TO JANUARY 10, 1941, HAVING BEEN WITHHELD PRESUMABLY BECAUSE OF THE SOLDIER'S ALIENAGE, ALTHOUGH THERE IS A LETTER OF FEBRUARY 13, 1941, FROM HIS COMMANDING OFFICER TO YOU, PARAGRAPH 3 OF WHICH IS AS FOLLOWS:

IT HAS SINCE BEEN DETERMINED THAT THE PERIOD INDICATED IN PARAGRAPH 1, ABOVE ( DECEMBER 1, 1940 TO JANUARY 10, 1941) WILL NOT BE CONSIDERED AS LOST TIME AND WILL NOT HAVE TO BE MADE UP BY THE SOLDIER.

THE VOUCHER SHOWS FURTHER THAT THE ENLISTED MAN HAS COMPLETED LESS THAN 1 YEAR OF SERVICE, SUGGESTING IN THIS RESPECT THAT HE HAD NO MILITARY SERVICE PRIOR TO HIS ENLISTMENT ON SEPTEMBER 28, 1940.

THERE WAS FURNISHED WITH THE VOUCHER COPY OF AN INSTRUMENT ENTITLED " AGREEMENT TO COMPLETE NATURALIZATION WITHOUT DELAY" AS FOLLOWS: I, DONALD M. GARDINER, DO VOLUNTARILY AGREE TO COMPLETE NATURALIZATION WITHOUT DELAY AS PROVIDED BY PAR. 4-D AND 4-F (1), WAR DEPARTMENT, A.G.O. LETTER, 10-17- 40. DECLARATION OF INTENTION WAS FILED AT CHICAGO, ILLINOIS, ON JANUARY 11, 1941, AND SUBSEQUENT PAPERS WILL BE EXECUTED AS PROVIDED BY LAW.

(S) DONALD M. GARDINER

SUBSCRIBED AND SWORN TO, BEFORE ME THIS 12TH DAY OF FEBRUARY 1941.

(S) THORNTON C. G. GOERING,

CAPTAIN, INFANTRY,

SUMMARY COURT.

COPIES OF PARAGRAPHS 4-E AND 4-F OF THE CIRCULAR REFERRED TO IN THE AGREEMENT TO COMPLETE NATURALIZATION WERE ALSO SUBMITTED WITH THE VOUCHER, BUT IF GARDINER'S ENTRY INTO THE ARMY ON SEPTEMBER 28, 1940, WAS UNDER AN ORIGINAL VOLUNTARY ENLISTMENT, THE PERTINENCY OF THE ENCLOSURES FOR THE PURPOSE OF SUPPORTING PAY TO THIS ENLISTED MAN IS BY NO MEANS CLEAR. THE LETTER OF THE ADJUTANT GENERAL IS PUBLISHED, IN PART, IN SECTION VIII OF WAR DEPARTMENT FINANCE BULLETIN NO. 96, DATED OCTOBER 31, 1940.

THE ACT OF JULY 1, 1937, 50 STAT. 446, MAKING APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT, FOR THE FISCAL YEAR 1938, UNDER THE TITLE "PAY, AND SO FORTH, OF THE ARMY," PROVIDED:

* * * THAT NO PART OF THIS OR ANY OTHER APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAY OF ANY PERSON, CIVIL OR MILITARY, NOT A CITIZEN OF THE UNITED STATES, UNLESS IN THE EMPLOY OF THE GOVERNMENT OR IN A PAY STATUS UNDER APPROPRIATIONS CARRIED IN THIS ACT ON JULY 1, 1937, NOR FOR THE PAY OF ANY SUCH PERSON BEYOND THE PERIOD OF ENLISTMENT OR TERMINATION OF EMPLOYMENT, BUT NOTHING HEREIN SHALL BE CONSTRUED AS APPLYING TO INSTRUCTORS OF FOREIGN LANGUAGES AT THE MILITARY ACADEMY, OR TO FILIPINOS IN THE ARMY TRANSPORT SERVICE, OR TO PERSONS EMPLOYED OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES EXCEPT ENLISTED MEN OF THE REGULAR ARMY, OTHER THAN PHILIPPINE SCOUTS, UPON EXPIRATION OF ENLISTMENT:

THE WAR DEPARTMENT BY FINANCE BULLETIN NO. 49, DATED JULY 22, 1937, CITED THE ABOVE-QUOTED LAW, AND PROMULGATED THE FOLLOWING REGULATIONS:

UNDER THE TERMS OF THE LAW NO PERSON MAY BE ENLISTED OR REENLISTED, EXCEPT IN THE PHILIPPINE SCOUTS, AFTER JULY 1, 1937, WHO IS NOT A CITIZEN OF THE UNITED STATES AT THE TIME OF ENLISTMENT. THE ENLISTMENT CONTRACTS OF NONCITIZENS WHO WERE IN THE SERVICE ON JULY ST WILL BE CONTINUED IN FORCE UNTIL THEIR EXPIRATION.

NO NONCITIZEN MAY BE CONTINUED IN SERVICE BEYOND THE EXPIRATION DATE OF HIS ENLISTMENT FOR THE PURPOSE OF PERMITTING HIM TO COMPLETE HIS CITIZENSHIP * * *.

THE ACT OF AUGUST 19, 1937, 50 STAT. 696, PROVIDED:

THAT, NOTWITHSTANDING THE LANGUAGE CONTAINED IN THE SECOND PROVISO ON PAGE 6 OF THE ACT OF JULY 1, 1937 ( PUBLIC NO. 176, 75TH CONG., ST SESS.), OR ANY OTHER ACT, DURING THE THREE-YEAR PERIOD FOLLOWING THE ENACTMENT OF THIS ACT, ENLISTED PERSONNEL OF THE ARMY WHO HAVE LEGALLY DECLARED THEIR INTENTION TO BECOME CITIZENS, OR WHO DO SO DURING THEIR CURRENT ENLISTMENT, OR WHO HAVE BEEN DISCHARGED FROM THE ARMY SINCE JULY 1, 1937, AND WHO ALSO AGREE TO COMPLETE EXPEDITIOUSLY THEIR NATURALIZATION AND BECOME CITIZENS OF THE UNITED STATES MAY BE REENLISTED AND RECEIVE THE PAY TO WHICH, EXCEPT FOR THE AFORESAID PROVISO, THEY WOULD OTHERWISE BE LEGALLY ENTITLED: PROVIDED, THAT FILIPINOS WHO WERE SERVING IN THE ARMY ON JULY 1, 1937, MAY BE REENLISTED WITHOUT REGARD TO THEIR CITIZENSHIP STATUS, AND RECEIVE THE PAY TO WHICH OTHERWISE LEGALLY ENTITLED.

INSTRUCTIONS FOLLOWING THE ENACTMENT OF THIS STATUTE WERE PROMULGATED TO THE SERVICE BY SECTION III, FINANCE BULLETIN NO. 58, DATED AUGUST 26, 1937, AS FOLLOWS:

* * * ORGANIZATION COMMANDERS WILL REQUIRE EACH ENLISTED MAN TO WHOM THIS LAW APPLIES TO AGREE IN WRITING TO OBTAIN CITIZENSHIP BY EXPEDITIOUS COMPLETION OF NATURALIZATION PROCEEDINGS. ALL SUCH AGREEMENTS WILL BE COMPLETED WITHIN THIRTY DAYS FOLLOWING RECEIPT OF THESE INSTRUCTIONS AND IF SOLDIER DOES NOT AGREE TO OBTAIN CITIZENSHIP HE WILL BE REQUIRED TO SIGN A STATEMENT TO THAT EFFECT. ORIGINALS OF AGREEMENTS OR STATEMENTS WILL BE FILED WITH SERVICE RECORDS * * * ORIGINAL ENLISTMENTS IN THE REGULAR ARMY OF MEN WHO ARE NOT CITIZENS OF THE UNITED STATES ARE NOT REPEAT NOT AUTHORIZED * * *.

BEGINNING WITH THE ACT OF JUNE 11, 1938, 52 STAT. 646, MAKING APPROPRIATIONS FOR THE MILITARY SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1939, AND CONTINUING THROUGH THE FISCAL YEAR ENDING JUNE 30, 1941, BY THE ACT OF JUNE 13, 1940, PUBLIC, NO. 611, 76TH CONGRESS, 54 STAT. 355, IDENTICAL PROVISIONS APPEAR WHICH PROHIBIT THE USE OF FUNDS APPROPRIATED THEREIN FOR THE PAYMENT TO ALIENS IN THE FOLLOWING LANGUAGE:

* * * THAT NO PART OF THIS OR ANY OTHER APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAY OF ANY PERSON, CIVIL OR MILITARY, NOT A CITIZEN OF THE UNITED STATES, UNLESS IN THE EMPLOY OF THE GOVERNMENT OR IN A PAY STATUS ON JULY 1, 1937, UNDER APPROPRIATIONS FOR THE WAR DEPARTMENT, NOR FOR THE PAY OF ANY SUCH PERSON BEYOND THE PERIOD OF ENLISTMENT OR TERMINATION OF EMPLOYMENT, BUT NOTHING HEREIN SHALL BE CONSTRUED AS APPLYING TO INSTRUCTORS OF FOREIGN LANGUAGES AT THE MILITARY ACADEMY, OR TO FILIPINOS IN THE ARMY TRANSPORT SERVICE, OR TO PERSONS EMPLOYED OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES EXCEPT ENLISTED MEN OF THE REGULAR ARMY, OTHER THAN PHILIPPINE SCOUTS, UPON EXPIRATION OF ENLISTMENT, AND THIS PROVISION SHALL BE SUBJECT TO THE PROVISIONS OF THE ACT ENTITLED " AN ACT FOR THE PROTECTION OF CERTAIN ENLISTED MEN OF THE ARMY," APPROVED AUGUST 19, 1937: * * *

THE RESTRICTIONS IN THESE APPROPRIATION ACTS WERE DESIGNED TO PROHIBIT THE ENLISTMENT IN THE ARMY OF ALIENS. THE ACT OF AUGUST 19, 1937, BY PERMITTING THEM TO DECLARE THEIR INTENTION TO BECOME CITIZENS DURING THEIR THEN CURRENT ENLISTMENT, WITH A FURTHER PROVISO FOR REENLISTMENT AFTER DISCHARGE SUBSEQUENT TO JULY 1, 1937, UPON AGREEMENT TO COMPLETE EXPEDITIOUSLY THEIR NATURALIZATION, BUT BY THE TERMS OF THE ACT OF AUGUST 19, 1937, THE PERIOD OF THIS CONCESSION WAS TO EXPIRE BY EXPRESS LIMITATION 3 YEARS FOLLOWING ITS ENACTMENT.

IN VIEW OF THE PROVISIONS CONTAINED IN THE ANNUAL APPROPRIATION ACTS FOR THE MILITARY SERVICE PROHIBITING THE USE OF FUNDS SO APPROPRIATED FOR THE PAYMENT OF ALIENS AND THE LIMITED SCOPE OF THE EXCEPTIONS CONTAINED IN THE ACT OF AUGUST 19, 1937, IT APPEARS TO BE CLEAR THAT THE ORIGINAL ENLISTMENT IN THE ARMY OF ALIENS AFTER JUNE 30, 1937, IS UNAUTHORIZED.

THAT THE SOLE PURPOSE OF THE ACT OF AUGUST 19, 1937, SUPRA, WAS TO PROTECT ALIEN ENLISTED PERSONNEL WHO WERE IN THE SERVICE ON JULY 1, 1937, AND WAS NOT FOR THE PURPOSE OF PERMITTING ORIGINAL ENLISTMENTS OF ALIENS AFTER THAT DATE, IS MADE DOUBLY CLEAR BY THE ACT OF AUGUST 16, 1940, PUBLIC, NO. 767, 54 STAT. 788, WHICH PROVIDES:

THAT THE BODY OF THE ACT ENTITLED " AN ACT FOR THE PROTECTION OF CERTAIN ENLISTED MEN OF THE ARMY," APPROVED AUGUST 19, 1937 (50 STAT. 696), BE, AND THE SAME IS HEREBY, AMENDED TO READ AS FOLLOWS:

"THAT, NOTWITHSTANDING THE LANGUAGE CONTAINED IN THE SECOND PROVISO UNDER THE SUBHEADING "PAY, AND SO FORTH, OF THE ARMY" OF THE ACT OF JULY 1, 1937 (50 STAT. 446), AND SIMILAR PROVISOS OF OTHER ACTS HERETOFORE OR HEREAFTER ENACTED, ANY ALIEN OTHERWISE ELIGIBLE FOR ENLISTMENT IN THE REGULAR ARMY, WHO SHALL HAVE BEEN AN ENLISTED MAN THEREIN FOR ANY PERIOD SUBSEQUENT TO JUNE 30, 1937, WHO SHALL HAVE MADE A VALID AND STILL EFFECTIVE DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES, OR SHALL HAVE FURNISHED PRIMA FACIE EVIDENCE OF HIS ELIGIBILITY FOR ADMISSION TO SUCH CITIZENSHIP WITHOUT PRIOR FORMAL DECLARATION OF INTENTION, AND SHALL HAVE AGREED IN WRITING TO COMPLETE HIS NATURALIZATION WITHOUT UNNECESSARY DELAY, SHALL UP TO AND INCLUDING JUNE 30, 1943, BE DEEMED ELIGIBLE (1) IF IN THE SERVICE, FOR CONTINUANCE THEREIN UNTIL EXPIRATION OF CURRENT ENLISTMENT, FOR REENLISTMENT, AND FOR CONTINUANCE IN THE SERVICE UNDER SUCH REENLISTMENT NOT LATER THAN JUNE 30, 1943; (2) IF NOT IN THE SERVICE, FOR REENLISTMENT AND FOR CONTINUANCE IN THE SERVICE UNDER SUCH REENLISTMENT NOT LATER THAN JUNE 30, 1943; AND (3) IN EITHER CASE FOR RECEIPT WHILE SO SERVING OF THE PAY OF HIS GRADE AND LENGTH OF PRIOR SERVICE: PROVIDED, THAT FILIPINOS WHO WERE SERVING IN THE ARMY ON JULY 1, 1937, MAY BE RETAINED IN THE SERVICE UNDER CURRENT ENLISTMENTS AND MAY BE REENLISTED WITHOUT REGARD TO THEIR CITIZENSHIP STATUS, AND MAY RECEIVE THEIR PROPER PAY AND ALLOWANCES UNDER SUCH ENLISTMENTS AND REENLISTMENTS.'

THE LANGUAGE OF THIS ACT IS CLEAR, BUT IF THE MEANING WERE OBSCURE OR AMBIGUOUS, THE REPRESENTATIONS OF THE WAR DEPARTMENT AT WHOSE REQUEST THE BILL WAS INTRODUCED AND THE REPORT OF THE CHAIRMAN OF THE COMMITTEE ON MILITARY AFFAIRS ON H.R. 9158 ( H.R. 1939, 76TH CONG., 3D SESS.) SEEM TO SHOW CONCLUSIVELY THAT NEITHER THE ACT OF AUGUST 19, 1937, NOR THE ACT OF AUGUST 16, 1940, APPLIES TO ALIENS WHO WERE NOT ENLISTED MEN IN THE ARMY ON OR BEFORE JULY 1, 1937. ON THE PRESENT RECORD GARDINER WAS AN ALIEN NONDECLARANT AT THE TIME OF HIS ENLISTMENT SEPTEMBER 28, 1940, HIS ENLISTMENT WAS NOT AUTHORIZED UNDER THE LAWS HEREIN CITED, AND IT IS NECESSARILY CONCLUDED THAT NO PART OF THE FUNDS APPROPRIATED FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1941, IS AVAILABLE FOR THE PAYMENT TO HIM OF THE PAY AND ALLOWANCES CLAIMED. PAYMENT OF THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.